[법인세등부과처분취소][공2006.4.1.(247),532]
[1] The standard for determining whether a person constitutes “non-housing employee” under Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act regarding the denial of wrongful calculation
[2] In applying Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act, where a homeless employee received a loan of a house after acquiring a house, the burden of proving that the loan was actually used for the repayment of the acquisition fund of the relevant house, and the case where the use is presumed to have been actually presumed
[1] Whether a person constitutes a "non-housing employee" under Article 20 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) and Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998), shall be determined depending on whether it is indicated as a "house owner" in the building register unless it becomes invalid or there are other special circumstances, and in principle, it shall be deemed that a person without a house who provides a mortgage loan as a principle for securing a claim is homeless at the time of lending a house. However, if a person without a house acquires a house with another fund first with a house and redeems a house acquired a house with a loan with a house from a corporation, it shall be deemed as an "non-housing employee" under the proviso of Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act, and if a person denies a loan with no house without any reason and received a loan after the loan, it shall be deemed to constitute an unlawful act.
[2] In applying Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 198), where a person without a house has received a loan after acquiring a house first, even if the loan was made at a close time after acquiring the house, it shall be asserted that the loan was actually used for the repayment of the acquisition fund of the relevant house, and it shall be proved by the legal entity that intends to exclude the application of unfair calculation and calculation avoidance. However, if the loan application had been made before acquiring the house, it can be presumed that the loan was actually used for the repayment of the acquisition fund of the house.
[1] Article 20 (see current Article 52) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998), Article 46 (2) 7 (see current Article 88 (1) 6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998), Article 20 (see current Article 52) of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998), Article 46 (2) 7 (see current Article 88 (1) 6) of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998), Article 26 of the Administrative Litigation Act / [2]
Han Bank Co., Ltd. (Attorney Lee Jae-soo, Counsel for defendant-appellee)
Head of Central Tax Office
Seoul High Court Decision 2004Nu18780 delivered on July 15, 2005
The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.
1. According to Article 20 of the former Corporate Tax Act (amended by Act No. 5581 of Dec. 28, 1998) and Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act (amended by Presidential Decree No. 15970 of Dec. 31, 1998; hereinafter “former Enforcement Decree of the Corporate Tax Act”), in a case where it is deemed that a corporation loans money to its employees, etc. free of charge or at low interest rate and reduces the tax burden unfairly, the corporation’s income amount for each business year may be calculated regardless of the corporation’s act or income amount. However, in a case where a corporation leases money (including land attached to the house) required for the acquisition and lease of a house below the national housing scale (which shall be limited to the amount determined by the Ordinance of the Ministry of Finance and Economy) under the Housing Construction Promotion Act to a homeless employee, and thus, whether it constitutes a “non-housing employee” should be determined in principle, depending on whether it is invalid as a cause or if it owns a building register.
However, if an employee without a house acquires a house with another fund as a principle in order to secure bonds, and provides a house as a collateral and redeems a house acquisition fund by obtaining a loan from a corporation, it shall be deemed to fall under a “employee without a house” under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act in light of the legislative purport of the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act. Thus, if an application for a loan with no house is filed and a loan was received after acquiring a house, the above case shall be deemed to fall under the case unless there are special circumstances. However, if a loan was received by applying for a loan after acquiring a house independently, it shall be deemed that the loan should be made at the time near the acquisition of the house, and it shall be excluded from the application of the unfair act and calculation
2. In this case, the court below held that, on the ground that the Plaintiff’s employee’s loan to employees is a secured loan in principle, and the Plaintiff’s employee is entitled to apply for a housing loan within three months after purchasing a house if there is any inevitable reason for the employee’s loan to ordinary customers as a financial institution, it constitutes a homeless employee under the proviso of Article 46(2)7 of the former Enforcement Decree of the Corporate Tax Act where the Plaintiff’s employee first acquired a housing loan from the Plaintiff within three months after acquiring the housing due to the provision of a secured loan, and used it for the repayment of the loan related to the said housing loan. In light of the above legal principles, the above judgment of the court below is justified.
However, according to the purport of the entire pleadings, the lower court held that the Plaintiff’s employees constituted homeless employees (the ground of the lower judgment 2.0 c. (2) Item (c) and that this part of the judgment is not acceptable, on the ground that 42 persons, including interest-holder, who acquired a house before the loan, but did not own a house other than the house at the time of the loan (the loans are deemed to have been made within 3 months after the acquisition of the house) appear to have used each loan for the redemption of the fund related to the acquisition of each house.
In light of the above legal principles, even if a loan was granted after acquiring a house, if the loan was actually used at the close time after acquiring the house, it shall be proved by the legal entity that intends to exclude the application of the denial of wrongful calculation and calculation. However, if the loan application was made before acquiring the house, it can be presumed that the loan was actually used for the repayment of the house acquisition fund. Meanwhile, the purport of the whole oral argument refers to all circumstances and materials that were presented during the oral argument, and it cannot be viewed as an independent fact-finding material in light of its nature (see Supreme Court Decision 94Nu1470 delivered on February 3, 1995). The court below acknowledged the fact that the loan was used only for the entire purpose of oral argument regardless of whether the loan application was filed before acquiring the house or after the acquisition of the house, and therefore, it is obvious that the court below erred in the misapprehension of legal principles as to the "house without a house" under the proviso of Article 46 (2) 7 of the former Enforcement Decree of the Corporate Tax Act, or there was an error in the judgment.
3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.
Justices Park Si-hwan (Presiding Justice)